DATE: January 22, 2003

SUBJECT: Environmental Protection Agency Acquisition Regulation (EPAAR); Background Checks for Contractors Performing Services On-Site

SOURCE: Federal Register, January 22, 2003, Vol. 68, No. 14, page 2988

AGENCIES: Environmental Protection Agency (EPA)

ACTION: Proposed Rule

SYNOPSIS: EPA is proposing to add EPAAR 1552.211-81, Background Checks for EPA Contractors Performing Services On-Site, which would require contractors and subcontractors to perform background checks and make suitability determinations for their employees who are performing services on or within federally-owned or leased space and facilities, commercial space primarily occupied by federal employees, and Superfund, Oil Pollution Act, and Stafford Act sites.

EDITOR'S NOTE: The EPA Acquisition Regulation (EPAAR) is Chapter 15 of Title 48 of the Code of Federal Regulations. It is available on the Internet at http://www.epa.gov/oamrfp12/ptod/epaar.pdf.

DATES: Comments on the proposed rule must be submitted no later than March 24, 2003.

ADDRESSES: Comments may be submitted electronically (EPA's preferred method for receiving comments) by going to EPA Dockets at http://www.epa.gov/edocket; by e-mail to oei.docket@epa.gov, Attention Docket ID No. OARM-2002-0001; by mail (three copies) to OEI Docket, Title: Background Checks for EPA Contractors Performing Services On-Site, EPA Docket Center (28221T), 1200 Pennsylvania Ave., NW, Washington, DC, 20460, Attention Docket ID No. OARM-2002-0001; or by hand delivery or courier to EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave, NW, Washington, DC 20004, Attention Docket ID No. OARM-2002-0001, between 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Thomas Valentino, U.S. EPA, Office of Acquisition Management, Mail Code (3802R), 1200 Pennsylvania Avenue, NW, Washington, DC 20460, 202-564-4522.

SUPPLEMENTAL INFORMATION: The events of September 11, 2001, have heightened both government and private industry awareness about protecting facilities and the personnel who work in them. EPA has a large number of contracts that require contractor and subcontractor employees to have access to federally-owned or leased facilities and space, federally-occupied facilities, and Superfund, Oil Pollution Act, and Stafford Act sites. Although such access is often necessary for contract performance, it creates significant potential risks for EPA. While background checks provide no guarantee as to a person's loyalty, trustworthiness, or suitability for contract performance, they provide valuable information that may prove useful in determining an individual's suitability to perform on-site services for the EPA. Therefore, EPA is proposing to amend the EPAAR to add EPAAR 1552.211-81 that would require cotractors and subcontractors to perform background checks and make suitability determinations for their employees performing services on-site.

EPAAR 1552.211-81 would in be required to be included "in all solicitations and contracts, except for commercial item acquisitions, where it is expected that the contractor will be required to perform services on or within federally-owned or leased space and facilities, commercial space primarily occupied by federal employees, or Superfund, Oil Pollution Act, or Stafford Act sites...This clause is also required, when applicable, for work to be performed on-site that is ordered under non-EPA contracts." However, contracting officers may include the clause in solicitations and contracts other than these, "including commercial item acquisitions if deemed appropriate, if determined necessary in order to protect the Government's interests and national security."

The clause would require the contractor or subcontractor to complete background checks and make suitability determination ("a determination that there are reasonable grounds to believe that an individual will likely be able to perform the contract requirements on-site without undue risk to the interests of the government and the national security") on each of its employees prior to the employee beginning on-site work, and notify the contracting officer that the background checks and suitability determinations have been completed for affected individuals. "At a minimum, the background check and suitability determination must include an evaluation of: (i) law enforcement checks (federal, state, and local for the past 5 years); (ii) credit report; (iii) Social Security Number trace; (iv) verification of U.S. citizenship or legal resident status; (v) employment history (past 5 years); (vi) education history (highest degree verified); (vii) references (3 individuals); (viii) residence (past 3 years); (ix) military service discharge notice; and (x) professional license and certification...In making a suitability determination, the contractor shall consider the following factors and evaluate them against the work to be performed, the performance location, and the degree of risk to the government: (i) any loyalty or terrorism issue; (ii) patterns of conduct (e.g., alcoholism/drug addiction, financial irresponsibility/major liabilities, dishonesty, unemployability for negligence or misconduct, criminal conduct); (iii) dishonorable military discharge; (iv) felony and misdemeanor offenses; (v) drug manufacturing/trafficking/sale; (vi) major honesty issue (e.g., extortion, armed robbery, embezzlement, perjury); (vii) criminal sexual misconduct; (viii) serious violent behavior (e.g., rape, aggravated assault, arson, child abuse, manslaughter); (ix) illegal use of firearms/explosives; and (x) employment related misconduct involving dishonesty, criminal or violent behavior...The contractor shall evaluate any adverse information about an individual by considering the following factors before making a suitability determination: (i) the nature, extent and seriousness of the conduct; (ii) the circumstances surrounding the conduct; (iii) the frequency and recency of the conduct; (iv) the individual's age and maturity at the time of the conduct; (v) the presence or absence of rehabilitation and other pertinent behavior changes; (vi) the potential for pressure, coercion, exploitation, or duress; and (vii) the likelihood of continuation of the conduct."

If, after making a suitability determination, a contractor becomes aware that an employee working at an on-site location under an EPA contract becomes an unacceptable risk to the government, "the contractor shall immediately remove that employee from the site, notify the contracting officer that such a removal has taken place, and replace them with a qualified substitute. If the approval of the contracting officer was initially required for the removed employee, contracting officer approval is required for the replacement employee."

In addition, the clause would include the following provisions:

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2003 by Panoptic Enterprises. All Rights Reserved.

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